Controlled Substances | Case Law

CONTROLLED SUBSTANCES/EXPERTS/LAB TECH FOUNDATION/DELIVERY/DISCOVERY VIOLATIONS

1st Dist. People v. Contreras, No. 1-00-1910, (January 14,
2002) 1st.div. (JUSTICE COHEN) affirmed, PCS W/INTENT BASED SOLEY ON WEIGHT

The parties stipulated that after chemical analysis, Debra Minton, a
forensic scientist employed by the Illinois State Police Crime Lab,
determined that the clear plastic bag containing white powder weighed
458.9 grams and tested positive for cocaine.

The sole issue on appeal is whether the State proved beyond a reasonable
doubt that defendant intended to deliver the cocaine where the only
evidence introduced to support an inference of intent to deliver was the
weight of cocaine recovered.

In order to sustain a conviction for possession of a controlled
substance with intent to deliver, the State must prove beyond a
reasonable doubt that: (1) the defendant had knowledge of the presence
of narcotics; (2) the narcotics were in the immediate control or
possession of the defendant; and (3) the defendant intended to deliver
the narcotics. People v. Pintos, 133 Ill. 2d 286, 291-92 (1989). The
only element of the offense that defendant challenges as not having been
proved beyond a reasonable doubt is intent to deliver. Defendant
concedes that the weight of the cocaine recovered is a "circumstance
tending to raise an inference of intent to deliver" and makes no
argument that the amount of cocaine recovered in this case is consistent
with personal use. Defendant does argue, however, that the State's
failure to offer any other indicia of intent to deliver should be fatal
to its case. Specifically, defendant argues that the State offered
"absolutely no evidence" of the purity of the cocaine or that the amount
of cocaine recovered was inconsistent with personal use.

Because direct evidence of intent is rare, intent to deliver is commonly
proved by circumstantial evidence . People v. Rivera, 293 Ill. App. 3d
574, 576 (1997); People v. Green, 256 Ill. App. 3d 496, 500-01 (1993).
Our supreme court has established several factors that courts may use to
support an inference of intent to deliver. These factors are: (1)
whether the quantity of the controlled substance is in excess of an
amount to be viewed as being for personal consumption; (2) the purity of
the substance; (3) possession of weapons; (4) possession of large
amounts of cash; (5) possession of police scanners, pagers, or cellular
phones; (6) possession of drug paraphernalia; and (7) the manner in
which the substance is packaged. People v. Robinson, 167 Ill. 2d 397,
408 (1995). "The question of whether the evidence is sufficient to prove
intent to deliver must be determined on a case-by-case basis." Robinson,
167 Ill. 2d at 412-13.

The trial court determined that the State proved beyond a reasonable
doubt that defendant possessed the cocaine with the intent to deliver
and sentenced defendant to 15 years' imprisonment. The judgment of the
circuit court was affirmed.

1st Dist. People v. Hendricks No. 1-99-3734 (October 12, 2001) 6th div. (FROSSARD)
Reversed and remanded. DISCOVERY VIOLATION

State's failure to supply defense with notice of intention to
provide testimony of unsigned statement allegedly made by defendant,
which was only evidence presented at trial of defendant's knowledge
that package delivered to home contained doll stuffed with crack
cocaine, entitled defendant to mistrial. Further, since State
failed to present any evidence sufficient to prove intent to
deliver, conviction for possession of controlled substance with
intent to deliver must be reversed. Therefore, defendant may be
retried on possession charge only.

In deciding whether a defendant is entitled to a new trial as the
result of a discovery violation by the State, the supreme court has
articulated the factors we are to consider as including the
following: (1) the closeness of the evidence; (2) the strength of
the undisclosed evidence; (3) the likelihood that prior notice could
have helped the defense discredit the evidence; and (4) the
willfulness of the State in failing to disclose the new evidence.
Weaver, 92 Ill. 2d at 560.

Supreme Court Rule 412 governs disclosure to the accused in criminal
cases. 134 Ill. 2d R. 412. Rule 412 in pertinent part provides as
follows:

"(a) Except as is otherwise provided in these rules as to matters
not subject to disclosure and protective orders, the State shall,
upon written motion of defense counsel, disclose to defense counsel
the following material and information within its possession or
control:
(ii) any written or recorded statements and the substance of any
oral statements made by the accused *** and a list of witnesses to
the making and acknowledgment of such statements." 134 Ill. 2d R.
412 (a)(ii).

The duty of the State to disclose under Rule 412 is a continuing
one, requiring prompt notification to the defendant of the discovery
of any additional material or information, up to and during trial.
134 Ill. 2d R. 415(b); People v. Watson, 76 Ill. App. 3d 931, 935-36
(1979). While compliance with the discovery rules is mandatory, the
failure to comply with these rules does not require a reversal
absent a showing of prejudice. People v. Robinson, 157 Ill. 2d 68,
79 (1993). A new trial should be granted if the defendant is
prejudiced by the discovery violation and the trial court fails to
eliminate the prejudice. People v. Tripp, 271 Ill. App. 3d 194, 201
(1995).

To establish that a defendant committed the offense of possession of
controlled substance with intent to deliver, the State must prove
beyond a reasonable doubt the following elements: (1) the defendant
had knowledge of the presence of the narcotics; (2) the narcotics
were in the defendant's immediate possession or control; and (3) the
defendant intended to deliver the narcotics. 720 ILCS 570/401 (West
2000); People v. Robinson, 167 Ill. 2d 397, 407 (1995).
"Such factors include whether the quantity of controlled substance
in defendant's possession is too large to be viewed as being for
personal consumption (People v. Berry (1990), 198 Ill. App. 3d 24),
the high purity of the drug confiscated (People v. Torres (1990),
200 Ill. App. 3d 253), the possession of weapons (People v. Dockery
(1993), 248 Ill. App. 3d 59), the possession of large amounts of
cash (People v. Jones (1991), 215 Ill. App. 3d 652), the possession
of police scanners, beepers or cellular telephones (People v. LeCour
(1988), 172 Ill. App. 3d 878; People v. Bradford (1993), 239 Ill.
App. 3d 796), the possession of drug paraphernalia (People v.
McDonald (1992), 227 Ill. App. 3d 92) and the manner in which the
substance is packaged (People v. Banks (1992), 227 Ill. App. 3d
950)." Robinson, 167 Ill. 2d at 408.

Here, there was no evidence that defendant attempted to sell any of
the cocaine found hidden in the clown doll. The contraband recovered
from defendant was not individually packaged but, instead, was found
in a single plastic bag. Further, the contraband was not recovered
from defendant's person, but was found concealed in the clown doll.
There was no evidence the clown doll had been opened by defendant.
Additionally, unlike Chapple, the State failed to present expert
testimony demonstrating that the amount of cocaine recovered from
the clown doll exceeded the amount usually possessed for personal
consumption.

No guns, ammunition, scale, pagers, telephone beeper, large amount
of money, or drug records were recovered from defendant's residence.
People v. Robinson, 233 Ill. App. 3d 278, 289 (1992). No drug
paraphernalia, plastic baggies, or police scanners commonly
associated with the selling of cocaine were recovered. People v.
Bradford, 239 Ill. App. 3d 796, 800 (1993). The packaging of the
cocaine in this case in one package, as opposed to many small
packets, does not evidence an intent to deliver. Bradford, 239 Ill.
App. 3d at 800-801. There was no evidence defendant had any
knowledge of local drug trafficking and no evidence of any
involvement with drugs. People v. McDonald, 227 Ill. App. 3d 92,
99-100 (1992). The State introduced no evidence that the cocaine
found inside the clown doll was of high purity and therefore likely
to be "cut" or diluted for sale. People v. Foules, 258 Ill. App. 3d
645, 655 (1994). No evidence whatsoever was offered as to the purity
of the cocaine. People v. Pavone, 241 Ill. App. 3d 1001, 1004
(1993).

Defendant was observed receiving a package with a doll containing
cocaine. Defendant was not observed selling cocaine. The fact that
defendant was observed being handed a package with a doll containing
cocaine supports only a finding of simple possession, given the
absence of other indicia of defendant's intent to sell the cocaine.
People v. Rivera, 293 Ill. App. 3d 574, 577 (1997).

People v. Raney No. 1-00-0061 (August 27, 2001) 1st Dist. 1st div.(FROSSARD) Reversed.
2001 Ill. App. LEXIS 658, Lab Tech Foundation

State failed to prove that defendant was guilty of possession of cocaine
with intent to deliver; because testimony of crime lab technician with
regards to machine analyses of sample lacked proper foundation. She
failed to present any testimony with regards to how the information from
gas chromatography mass spectrometer (GCMS) machine was recorded; or how
she ascertained that machine was performing accurately when she
performed test on sample to determine it contained cocaine.

Here, the expert testimony of forensic scientist Bethea was based upon
test results from operation of an electronic or mechanical device,
specifically the GCMS machine. Bethea did not provide any foundation
proof as to the method of recording the information provided by the GCMS
machine. More importantly, Bethea did not provide any foundation proof
that the GCMS machine was functioning properly at the time it was used.
The expert witness failed to explain how the machine was calibrated or
why she knew the results were accurate. Thus, the State failed to
establish the necessary foundation proof for admitting the expert
opinion.

People v. Schmalz, No. 88471 (November 22, 2000) Appeal, 3rd Dist.
Appellate court reversed, trial court affirmed. Was the State's
evidence sufficient to prove the defendant, Jennifer R. Schmalz,
guilty beyond a reasonable doubt of unlawful possession of cannabis
(720 ILCS 550/4(a) (West 1996)) and drug paraphernalia (720 ILCS
600/3.5(a) (West 1996))? In this decision, the supreme court
affirmed the original conviction, finding that a rational trier of
fact could well have found that defendant had knowledge of the
presence of the cannabis and had it under her possession or control.
Evidence presented at trial revealed that defendant was seated on
floor within twelve inches from paraphernalia, there was strong
smell of marijuana in the air, and defendant told officer that,
"we're having a party." (HARRISON)

"In the instant case, a young man admitted Officer Baize to the
single-family residence so that the officer could search for the
driver of a parked vehicle. While ascending an interior stairway, he
noticed smoke, smelled what he believed was burning marijuana, and
noticed that the smell was stronger when he reached the top of the
stairs. When he turned into an upstairs bedroom, the door to which
was partially open, he knocked and received a response to "come in."
In that very small room there was considerable smoke and haze, the
smell of burning marijuana, and four persons, one of whom was the
defendant, the only person sitting on the floor. The others were
seated on a couch and on a bed in the room. On the floor of the
bedroom were items of drug paraphernalia, namely, three bongs, i.e.,
pipes, as well as three clear plastic bags containing crushed green
plant. A fourth clear plastic bag was recovered from the couch after
one of the two persons sitting on it attempted to conceal something
from the police. Elsewhere in the room were other items of drug
paraphernalia. Defendant was sitting less than 12 inches from one of
the plastic bags, which together with a bong, was within her reach
as she sat there. Officer Baize saw no drinks, snacks, or food in
the room, but when he asked, "[W]hat are you doing?" defendant
responded, "[W]e're having a party." She did not say, "They're
having a party."